ETHICS OPINION 412: Canon 37

NUMBER 412 OCTOBER 1952

Question. In 1948 this office represented a husband and wife in the purchase of a house on Long Island. The husband was a client of mine and I was retained as attorney for that reason. Title to the house was taken in the wife’s name. Simultaneously with the purchase of the house, reciprocal wills were executed by each, drawn by this office. In her will she devises the house “that he (the husband) placed in my name” to the husband. I am informed that the husband was given the original of her will by her.

Subsequently, the wife left the husband, went to Florida, secured a divorce from the husband and has since remarried. This I know was done against his wishes and without his consent. After that the husband consulted me and I brought an action to impress a trust on the house and for a decree to compel the wife to convey the house to the husband, based upon his claim that he had made all payments for the house. I had no knowledge whatsoever of any transactions between them with respect to the payment made on the house and neither of them was in my confidence in that respect. The wills were drawn pursuant to directions given to me by the testators.

In the course of examining the wife before trial, I showed a copy of the will to the wife and referred her to the clause in question. The wife’s attorney thereupon raised the question of the propriety of my representing the husband in the litigation because of my having drawn the will. The examination before trial was suspended at that point, pending a declaration upon this question, and I have agreed with my adversary that I am to write your Committee requesting an expression on the point and will abide by your decision.

Answer. It is the opinion of the Committee that the inquiring attorney cannot, with propriety, represent the husband in the litigation referred to in the question.

It appears from the question that the attorney represented the husband and wife in the purchase of the real estate in question, and represented both of them in taking title to the house in the wife’s name. He also represented her in the drafting of her will which disposed of the property.

It is the Committee’s opinion that the continued representation of the husband would violate Canon 37. It is apparent that the attorney may use the confidences of the wife to her disadvantage and without her consent. This Canon 37 forbids, even if the attorney could obtain sufficient proof elsewhere that the wife’s rights in the property were merely nominal.